Legislature(2003 - 2004)
04/07/2003 03:31 PM Senate RES
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
SENATE RESOURCES STANDING COMMITTEE
April 7, 2003
3:31 p.m.
MEMBERS PRESENT
Senator Thomas Wagoner, Vice Chair
Senator Fred Dyson
Senator Ralph Seekins
Senator Ben Stevens
Senator Kim Elton
Senator Georgianna Lincoln
MEMBERS ABSENT
Senator Scott Ogan, Chair
COMMITTEE CALENDAR
SENATE BILL NO. 97
"An Act relating to public interest litigants and to attorney
fees; and amending Rule 82, Alaska Rules of Civil Procedure."
MOVED SB 97 OUT OF COMMITTEE
CONFIRMATION HEARING: Kevin Duffy, Commissioner, Alaska
Department of Fish and Game
PREVIOUS ACTION
SB 97 - See Resources minutes dated 3/28/03.
WITNESS REGISTER
Al Sundquist
3384 Mt. Vernon Ct.
Anchorage, AK 99503
POSITION STATEMENT: Opposed to SB 97
Janel Wright
Disability Law Center
3330 Arctic Blvd. #103
Anchorage, AK 99503
POSITION STATEMENT: Opposed to SB 97
June Pinnell-Stephens
3140 Roden Lane
Fairbanks, AK 99709
POSITION STATEMENT: Opposed to SB 97
Craig Tillery
Assistant Attorney General
Department of Law
1031 W 4th Ave.
Anchorage, AK 99501
POSITION STATEMENT: Explained the changes to the proposed
committee substitute to SB 97
Ken Jacobus
509 W Third
Anchorage, AK 99501
POSITION STATEMENT: Opposed to the proposed committee substitute
to SB 97
Al Burch
PO Box 884
Kodiak, AK 99615
POSITION STATEMENT: Supports the confirmation of Mr. Duffy as
ADF&G commissioner
Chris Garcia
PO Box 203
Kenai, AK 99611
POSITION STATEMENT: Opposed to Mr. Duffy's appointment as
commissioner of ADF&G
Janet Clucas
72880 Sterling Hwy
Clam Gulch, AK 99568
POSITION STATEMENT: Does not support Mr. Duffy's appointment if
he has been involved in the decline of the set net fishery.
Lynn Levengood
1008 16th Ave. Suite 200
Fairbanks, AK 99701
POSITION STATEMENT: Opposed to Mr. Duffy's confirmation.
Ken Duckett
United Southeast Alaska Gillnetters
No address provided
POSITION STATEMENT: Supports Mr. Duffy's confirmation.
Jerry McCune
United Fishermen of Alaska
211 4th Street, Suite 110
Juneau, Alaska 99801-1172
POSITION STATEMENT: Supports SB 97
ACTION NARRATIVE
TAPE 03-24, SIDE A
Number 0001
VICE-CHAIR TOM WAGONER called the Senate Resources Standing
Committee meeting to order at 3:31 p.m. Senators Dyson, Seekins,
Elton, Lincoln and Wagoner were present. The committee took up
SB 97.
SB 97-ATTY FEES: PUBLIC INTEREST LITIGANTS
VICE-CHAIR WAGONER told members that a committee substitute (CS)
for SB 97, labeled Version D, had been prepared that is no
longer specific to natural resource related litigation. He said
he plans to move this bill to the Senate Judiciary Committee and
asked participants to limit their testimony to 2 or 3 minutes.
SENATOR SEEKINS moved to adopt Version D of SB 97 as the working
document of the committee.
SENATOR ELTON objected for the purpose of hearing public
testimony.
VICE-CHAIR WAGONER took public testimony.
MR. AL SUNDQUIST spoke in opposition to SB 97. He told members
that laws of questionable constitutionality must be challenged
in the public interest. Public interest litigation provides the
most effective way to defend Alaskan's constitutional rights
against encroachments by state or local governments. SB 97 would
jeopardize the ability of individuals to hold legislators
accountable for misjudgments or misconduct. He asked committee
members to reject SB 97.
MS. JANEL WRIGHT, legal director for the Disability Law Center,
stated opposition to SB 97 for the following reasons. The public
interest litigant rule protects the public's ability to
challenge state decisions on matters of broad public interest
without the financial hardship of paying the state's attorney
fees if that litigation is unsuccessful. SB 97 eliminates this
protection by prohibiting courts from taking into consideration
the public interest nature of a case when the court determines
whether to award attorney's fees to the prevailing party. A very
important component of the Disability Law Center's ability to
advocate on behalf of Alaskans with disabilities is judicious
pursuit of state court remedies. Eliminating public interest
litigant status will effectively eliminate the opportunity of
individuals with disabilities to access the judicial branch of
their government to enforce their rights.
MS. WRIGHT pointed out that individuals with disabilities have
the highest unemployment rate nationwide and, as a group, have
the highest number living in poverty. If faced with the prospect
of liability for the defense attorney's fees, individuals with
disabilities will be unable to protect their rights in the
court. The public interest litigant exception does not foster
frivolous lawsuits. The Alaska Supreme Court has clearly stated
that anyone bringing a frivolous lawsuit exposes both the
attorney and the client to defense attorney's fees.
MS. JUNE PINNELL-STEPHENS stated opposition to SB 97 because
when the government makes a mistake, an individual should not
have to pony up the money to go to court to have it corrected.
Only by gathering together as organizations can most individuals
hope to take on that sort of action.
MR. CRAIG TILLERY, Assistant Attorney General, Department of Law
(DOL), offered to answer questions.
SENATOR DYSON asked Mr. Tillery to explain the changes in
Version D and how those changes will clarify that the bill no
longer pertains only to resource related litigation.
MR. TILLERY told members that Version D is substantially
different from the original bill. The original version was
focused on particular decisions by particular agencies. Version
D takes a different approach and completely abrogates public
interest litigant fees except in those instances where the
legislature may choose to amend by statute. For example,
currently, full attorneys fees are provided by statute for
consumer protection cases.
SENATOR DYSON said his impression is that this bill is aimed at
stopping frivolous lawsuits that impede resource development
through the use of court injunctions. If those lawsuits are
filed for illegitimate reasons, the plaintiff would pay the cost
of the litigation. He asked if Version D broadens the scope to
the extent it will have a dampening effect on someone in the
disability community who challenges a government action for
valid reasons but loses the case.
MR. TILLERY told members the original bill was broadened because
of concern about an equal protection challenge. DOL felt the
original bill would pass constitutional muster, however the
argument would be more difficult than if the scope of the bill
was broadened. In addition, the original version of the bill
started "writing in what is excepted and it becomes very
difficult to apply."
Regarding the effect on an individual bringing a disability
lawsuit in the public interest, MR. TILLERY said Version D would
require the individual to decide the likelihood of prevailing on
the merits of the case before filing. If the legislature
believes people should be able to bring a specific type of
lawsuit, the legislature could make that judgment by making
exceptions in statute. This bill puts that decision squarely
back in the hands of the legislature by eliminating the court
system's broad-brush approach.
VICE-CHAIR WAGONER announced that Senator Ben Stevens was
present.
SENATOR SEEKINS asked how many states have adopted a rule
similar to Rule 82.
MR. TILLERY said that very few, if any, have a similar rule. He
said the federal system does not have one either. The U.S.
Supreme Court stated it is not the province of the court system
to make those judgments; public interest litigant status should
be determined by a congressional or legislative decision.
MR. TILLERY said some other state legislatures might grant
attorneys' fees in specific instances, for example for consumer
protection or anti-trust cases. Nevertheless, as a general rule,
those decisions are not in the court's purview.
SENATOR SEEKINS asked if the legislature passes this bill as it
exists today [Version D], it could exempt certain types of cases
through another piece of legislation.
MR. TILLERY said that is correct.
SENATOR ELTON said during the subcommittee discussion, his
understanding was that no court rule would have to be eliminated
because public interest litigant status is an exception to a
court rule. However, he learned that a 1993 Supreme Court Order,
No. 11-18, established a court rule that will be abrogated by
this legislation.
MR. TILLERY said it is DOL's view that the court created that
rule through judicial exception. To remove the court's ability
to apply that exception via this legislation would not abrogate
a court rule but simply require the court to apply the original
rule.
SENATOR ELTON asked Mr. Tillery if he is familiar with the 1993
Supreme Court Order No. 11-18.
MR. TILLERY said he did not have a copy of it.
SENATOR ELTON said it would be helpful to understand why an
exception is not a de facto court rule.
MR. TILLERY offered to get back to Senator Elton with an answer
to that question.
SENATOR LINCOLN asked the amount of general fund dollars spent
in 2002 on public interest litigation.
MR. TILLERY said from FY 93 through FY 03, the state spent $4.5
million.
SENATOR LINCOLN asked how much of the $4.5 million was spent on
state resource agency cases.
MR. TILLERY said he would have to get back to Senator Lincoln
with an answer to that question.
3:50 p.m.
MR. KEN JACOBUS, an attorney in private practice and for the
Republican Party, said his comments to the committee were on his
own behalf. He said he had no problem with the original bill
because it was designed to address a specific area of concern to
the Governor: protection of natural resources and economic
development. Although he prefers other solutions, he could
support the original bill. However, he is opposed to broadening
the bill to include all public interest litigant cases. He
reminded members that when the government loses a public
interest litigant case, there is nothing wrong with requiring
the government to compensate for its wrongdoing. He pointed out
that a number of Republicans would not be in the legislature
were it not for the redistricting case, which was public
interest litigation. Also, a number of legislators could not
have collected campaign contributions but for the Singleton
case, which allowed unlimited soft money contributions, again,
public interest litigation. He said if a voter wants to
challenge an election for a good reason, this bill would require
the individual voter to pay attorney's fees to the state if he
or she loses the case. He doubts anyone would have challenged
the Lindauer candidacy if that were the case.
MR. JACOBUS said he disagrees with Mr. Tillery's statement that
Alaska Civil Rule 82 has a catch-all provision that says the
courts may vary attorney's fees if the equities of the case so
direct. The court can take any factor into account to determine
the inequities of the case. If the court is no longer able to
consider certain factors, that is the limitation on the catch-
all provision of Rule 82. He advised that he has no problem with
the legislature protecting natural resource cases. However, to
take away the rights of public interest litigation across the
board is inappropriate because of the numerous unintended
consequences. He asked members not to enact the committee
substitute [Version D].
SENATOR ELTON noted the purpose section of Version D cites
increased litigation, arguments made with little merit,
difficulties in compromising claims, and significant cost to the
state and private citizens as reasons to eliminate public
interest litigant status. He said when he read that, his
immediate thought was that it may save the state money, but it
creates a difficult standard for Alaskan citizens to meet. He
asked Mr. Jacobus if that is the focus of his testimony.
MR. JACOBUS said some of the statements in the purpose section
are not really true. A person is unlikely to bring an argument
with little merit because if one loses a public interest case,
he or she does not get reimbursed for attorney's fees. He agrees
that the public interest litigant doctrine leads to increased
litigation, but it does not encourage frivolous litigation. He
said it does not increase difficulty in compromising claims and,
although it may cost the state more money, that cost is for
wrongs that need to be redressed.
SENATOR ELTON maintained his objection to adopting Version D as
the working draft before the committee. He said he has concerns
with the original bill, but those problems are magnified in the
committee substitute. He felt Mr. Jacobus's testimony was
compelling. He stated his belief that the only way many Alaska
citizens feel able to challenge an overreaching state
bureaucracy is through this rule.
SENATOR BEN STEVENS asked how many of the testifiers are public
interest litigant attorneys. He questioned whether the
testifiers today are attorneys whose fees are paid by public
interest litigants.
SENATOR DYSON indicated he takes significant exception to
Senator Stevens' statement if it was an indictment of Mr.
Jacobus's testimony or integrity.
SENATOR BEN STEVENS said he was just making the point that the
committee needs to take that into consideration.
VICE-CHAIR WAGONER announced a brief at-ease.
SENATOR SEEKINS withdrew his motion to adopt Version D as the
working draft before the committee. He then moved to pass SB 97
from committee with individual recommendations.
SENATOR ELTON objected.
SENATOR LINCOLN told members she will be voting against the
motion. She said the cost of most of the cases has been small so
for the legislature to tell Alaskans they have to give much
thought to paying their own attorney fees for a public interest
case is wrong. She noted she just received a letter from the
Alaska Village Council Presidents who said they were involved in
three public interest litigant cases, the Kasillie (ph) case and
challenges to state agency decisions about fish and wildlife
management. They are very concerned this legislation will deter
the common person from filing a lawsuit against a state agency
thereby allowing some bad public decisions to be made.
VICE-CHAIR WAGONER said he would be supporting the bill because
he has seen, at times, the unfairness of the public interest
litigant doctrine.
The motion to move SB 97 from committee carried with Senators
Seekins, Dyson, Stevens and Wagoner in favor, and Senators Elton
and Lincoln opposed.
VICE-CHAIR WAGONER announced the bill would move to the Senate
Judiciary Committee with its appropriate fiscal notes.
4:07 p.m.
CONFIRMATION HEARING - KEVIN DUFFY, ADFG
MR. KEVIN DUFFY, Commissioner-designee of the Alaska Department
of Fish and Game (ADF&G), told members in his previous roles as
deputy commissioner and deputy director of the Division of
Commercial Fisheries he has had a chance to meet with most of
the committee members. He prides himself as having an open door
policy and will maintain that policy as the commissioner. He has
been employed at ADF&G for 21 years. He is proud of ADF&G's
professional staff. ADF&G has a reputation for sound management
that has been earned in both national and international forums
that others are envious of. He is under no illusions about the
challenges of the position of commissioner of ADF&G. He
recognizes the controversies associated with the decisions he
will make. He noted that Alaskans are very connected to the
resources and are comfortable expressing their opinions about
the use and management of those resources. He welcomes the
public's input to the department and to the Boards of Game and
Fisheries. He told members he is committed to using sound
science and biology when making resource management decisions.
VICE-CHAIR WAGONER announced he would first take testimony from
a person with time constraints and would then open the hearing
to questions from committee members.
MR. AL BURCH, a resident of Alaska since 1953 and a resident of
Kodiak for 38 years, stated support for Mr. Duffy's appointment.
He has commercially fished during his entire adult life. He has
worked with Mr. Duffy for a number of years on the North Pacific
Fisheries Management Council and appreciates Mr. Duffy's
approach to the fisheries. He believes the key words in Mr.
Duffy's testimony were "good science." Mr. Duffy will bring
Alaska into the 21st Century of fisheries management and will
enable Alaska's coastal communities to survive with the
development of a groundfish industry.
VICE-CHAIR WAGONER entertained questions from committee members.
SENATOR LINCOLN asked Mr. Duffy about his voting record as a
member of the North Pacific Fisheries Management Council
(NPFMC), on a policy which requires crab fishermen to sell their
catch to processors who own processor shares and on the IFQ
program for halibut sport charter vessels. She also asked his
view of the Division of Habitat transfer from ADF&G to the
Department of Natural Resources (DNR) and how that can result in
more efficiency with fewer people to issue permits.
MR. DUFFY said he supported the concept of processor shares in
the crab rationalization program before the NPFMC. NPFMC spent
almost four years trying to design the future of the crab
program in the Bering Sea and Aleutian Islands. Congress
instructed NPFMC to look at the impacts of a rationalization
program on communities, harvesters and processors. NPFMC
established a committee of industry representatives from a broad
spectrum of interests that worked for about two years to
identify a series of alternatives by which the Bering Sea crab
fishery could be rationalized. NPFMC, under his lead,
established a three-part program that included:
· IFQs to individual fishermen at 100 percent, based on
particular years selected for catch history.
· Processor shares at 90 percent to processors with a history
of processing crab in the Bering Sea and Aleutian Islands
based on a specific number of years.
· Impacts to coastal communities. The Council was clear in
its record about rationalizing the Bering Sea crab fishery.
That fishery is comprised of large vessels, a lot of non-
resident participation and a lot of stranded capital on the
processing side.
NPFMC was very clear that the program should not be used as a
model or set a precedent for other fisheries under consideration
for rationalization, the next being the Gulf of Alaska
groundfish fishery. He repeated that he did support processor
shares in that particular fishery and that a number of caveats
were included to protect the interests of IFQ holders, or
harvesters. The processors are awarded 90 percent of their
historical [catch] and the harvesters have 100 percent IFQs so
it is not true that an individual fisherman is required to work
with a particular processor. The concept of 90-10 also created A
and B shares. B shares can be sold to anyone. When this program
was designed, it was incumbent upon NPFMC to find a program that
was fair to all participants in the Bering Sea program.
TAPE 03-24, SIDE B
MR. DUFFY said that decision was made in June of 2002 but the
processor share aspect will require congressional approval. He
pointed out this program took almost four years to develop and
was approved by a vote of 11 to zero.
MR. DUFFY said, in response to Senator Lincoln's second
question, he voted against the halibut charter IFQ program in
the fall of 2001 for a number of reasons. He explained that
NPFMC had decided to restrict that industry with a guideline
harvest level prior to his involvement. It decided the guideline
harvest level for the charter halibut fishery could grow up to
125 percent of its historic percentage. If the level hit 125
percent, the fishery would be ratcheted down. The charter
halibut program was set up for Southcentral and Southeast
Alaska. As a new NPFMC member, he reviewed the record. The
discussion centered on how the halibut charter industry was
exploding and needed to be controlled. It appeared to him that
the halibut charter industry was growing by leaps and bounds.
His conclusion was that a guideline harvest level program was
the correct way to manage that fishery over the long term.
MR. DUFFY pointed out the halibut charter IFQ program goes one
step further and awards individual fishing quotas to charter
operators. He did not feel that was a necessary regulation in
the NPFMC process. Others felt differently. He noted that IFQ
programs for recreational fisheries are a significant national
public policy issue. He said he believes it will work but did
not believe it was necessary at the time.
Regarding Senator Lincoln's third question, MR. DUFFY said when
the decision was made to transfer Title 16 permitting
responsibilities from ADF&G to DNR, he worked with the division
directors to create a structure to continue to protect fish and
wildlife habitats in the state. That structure retains certain
permitting functions within DNR and certain permitting functions
at ADF&G. Title 16 permitting functions were moved to DNR but
other habitat related activities were retained at ADF&G. When he
and others undertook this permit streamlining effort, their goal
was to design a system with a number of trained professional
habitat biologists in DNR to maintain an effective and efficient
permitting system that would have some crossover ability to
consult with ADF&G. That system required a lot of analysis by a
lot of people. The habitat division had multiple funding sources
with multiple duties associated with each funding source. To
unravel that structure, the group tried to identify the amount
of money and time these individuals spent on Title 16 habitat
permitting. The net result of that analysis is what was proposed
in EO 107.
VICE-CHAIR WAGONER pointed out that four of Mr. Duffy's
predecessors testified against EO 107 and time will prove who is
right. He said he is willing to support the Governor's proposal
but does not understand why EO 107 places the ultimate authority
with the deputy commissioner of DNR and the state forester. He
interprets that to mean that decisions cannot be appealed to the
commissioner. Any decision will have to be appealed in court. He
asked why the proposal was structured that way.
MR. DUFFY said his understanding is that putting the decision
making authority at the deputy commissioner level will not
actually erode any of the DNR commissioner's responsibility
because the commissioner will be held accountable.
SENATOR SEEKINS asked how many people will be transferred from
the habitat division to DNR under this proposal.
MR. DUFFY answered about 35 or 36, of which 29 are professional
biologists and the others are administrative positions.
SENATOR SEEKINS asked if that is the number of positions or
actual employees.
MR. DUFFY said the collective bargaining process binds ADF&G to
inform the ADF&G employees who could be adversely affected.
Under the collective bargaining system, some employees have
"bumping" rights.
SENATOR SEEKINS said one of his concerns is game management. He
asked Mr. Duffy what he envisions the relationship to be between
the Board of Game and ADF&G.
MR. DUFFY replied the relationship is one in which ADF&G
provides scientific and biological expertise to the Board of
Game to use when making allocation decisions. ADF&G acts in an
advisory role to the Board of Game. In addition, the ADF&G
commissioner and the Board of Game have a collaborative
relationship. When the Board of Game makes certain decisions,
the commissioner is statutorily required to make a finding. He
sees the relationship as one in which ADF&G acts as support
staff to the board and, once decisions are made - one being the
Board of Game recommendation on Unit 19D East for the predator
control program - ADF&G provides the regulatory structure to
implement those decisions. In certain situations, the
commissioner must also make a finding based on recommendations
made by the Board of Game.
SENATOR SEEKINS asked, "Recommendations from the Game Board - to
whom?"
MR. DUFFY corrected himself and said "Direction."
SENATOR SEEKINS noted that a number of years ago the Board of
Game determined that the [game] populations were collapsing in
Unit 13 and authorized a predator control program. He asked why
ADF&G has not carried that out.
MR. DUFFY said he cannot give a detailed answer because he was
not directly involved in game management issues during that
time. He said in the recent past, the Board of Game gave ADF&G a
set of directions on Unit 13. ADF&G initiated an informed
consent process. Over the next year ADF&G will gather public
input and try to bring affected constituents up to speed on the
issues to come to a set of conclusions to move forward on an
effective predator control program in Unit 13. He anticipates
that he will make a decision next spring on the predator control
program.
SENATOR SEEKINS asked where the requirement for that process
exists in statute.
MR. DUFFY said he cannot specifically point to the statute that
gives him that authority.
SENATOR SEEKINS said he does not think Mr. Duffy will find it.
He said the Board of Game's statutory process authorizes the use
of predator control programs. However, no statute says after the
Board of Game has decided a problem exists, ADF&G should go
through the survey process and instigate a stakeholder process
when ADF&G biologists have already advised the Board that the
problem exists. He said although Mr. Duffy supports the survey
concept and spending $56,400 on it, the public process already
occurred through testimony to the Board of Game. He asked what
it is in this non-statutory process Mr. Duffy supports.
MR. DUFFY said the statutes he operates under as commissioner
give him some fairly broad powers, duties and authorities.
Although he cannot point to the specific statute, he has some
latitude in programs that ADF&G moves forward with.
SENATOR SEEKINS said he would like to know where that specific
authority lies in statute since the public input process
authority lies with the Board.
MR. DUFFY said Senator Seekins is correct in that the public
process authority lies with the Board of Game. However, through
experience in game management, ADF&G has found that providing an
informed consent process often allows an opportunity to move
forward on controversial programs and [devise a sustainable
solution]. One of his goals in initiating this one-year process
is to design a program that would be consistent with the Board
of Game's directive and to move forward with a sustainable
program for Unit 13.
SENATOR SEEKINS said the legislature has vested authority with
the Board of Game but, in effect, the commissioner can veto the
Board's decision to implement an active management program in a
district by initiating another public process and not submitting
findings.
MR. DUFFY said he cannot "veto" Board of Game decisions. He
believes he has some latitude once the Board of Game provides
direction to make a finding. He has some discretion within those
findings. He acknowledged that Senator Seekins does not support
the approach that ADF&G has initiated but he argued that this
approach may provide a long-term sustainable predator control
program that may be much more effective in the end.
VICE-CHAIR WAGONER said he gets the feeling that no one in ADF&G
wants to do predator control because they are afraid of the
threats of tourism and other boycotts. He indicated that
predator control programs have worked in the past.
MR. DUFFY said staff within the Division of Wildlife
Conservation focus on the best scientific information available
on which to base decisions. Within that confine, he believes a
number of professionals in ADF&G strongly support predator
control programs. He personally supports them. He pointed out
that ADF&G is administering such a program in Unit 19D East in
McGrath right now.
SENATOR LINCOLN noted McGrath is in her district and said this
issue has been ongoing through at least three administrations.
The issue boils down to implementing a real predator control
program using airplanes. She said during Governor Murkowski's
campaign, he talked about making a decision based on science,
not emotion. Most people in the McGrath area were enthused that
someone was going to take the predator control issue forward.
Very few moose are left for human consumption in that area and
McGrath residents depend upon it for their subsistence
lifestyle. She then read Mr. Duffy's recent quote in the
Fairbanks News Miner: "When predator control is implemented,
techniques must be chosen based on effectiveness and
efficiency." She said having been raised in Rampart and living
there now, she knows that wolves are very hard to trap. She has
seen wolves kill moose just to show their cubs how to do it.
They do not always eat them.
SENATOR LINCOLN said she has a real problem with having to come
back to this table to talk about predator control every year.
She expressed frustration that Mr. Duffy again suggested that
ADF&G can send local people out to trap wolves. That has not and
will not work because the wolf population has increased so much.
She said she was hoping [this administration] might "bite the
bullet" and do something effective but she now sees ADF&G
backing away to take more public input. She said public input
has been solicited on this issue for at least eight years. She
assured Mr. Duffy that ADF&G will hear nothing new yet that
process will take one more year. She maintained that the people
who live in that area depend on moose for food and cannot afford
to wait one more year.
SENATOR LINCOLN said the Board of Game clearly reaffirmed the
previous board's position that human consumptive use is the
preferred use of moose and that predator control in the McGrath
area is necessary to help restore the abundance of the moose
population to provide for human harvest. In addition, the board
recognized local concerns and endorsed an experimental predator
management program in Unit 19D East. She said this problem has
already been documented and the decision was based upon science
and, although the decision has been controversial, she is
concerned about food for people who live in that area.
SENATOR ELTON asked Mr. Duffy if the Board of Game recommended
that a predator control program be implemented in Unit 13 that
involved helicopters and biologists, and the Governor did not
support that idea, who Mr. Duffy would listen to.
MR. DUFFY asked to first respond to Senator Lincoln's comment.
He said she quoted some of the decisions made by the Board of
Game on Unit 19D. ADF&G chose an approach for Unit 19D whereby
department employees would fly the McGrath experimental
management area in fixed wing aircraft and relay information on
the presence or absence of wolves. ADF&G would then use local
residents to participate in the predator control program.
SENATOR LINCOLN responded, "That does not work. It's already
been tried."
SENATOR ELTON said the same issues arise in fisheries.
MR. DUFFY said in terms of his accountability as commissioner of
ADF&G, he is accountable to all of the citizens of the state and
ultimately his job is to protect, maintain and enhance the fish
and wildlife resources in the state. He said he faces a dynamic
tension when it comes to predator control programs. When he
makes a finding, he consults with the Governor's Office and
collectively they decide which program to go forward with. He
said he is responsive to both parties, the Board of Game and the
Governor. He wants to do everything he can to support the Board
of Game's decision-making authority and to implement the
programs it suggests. He also believes it is not a perfect fit.
In making the findings he also makes determinations based on his
direct boss, the Governor. He said he wants to be clear that he
will be working with the Governor on these decisions and, in
doing so, he will do everything he can to support the Board of
Game.
4:53 p.m.
VICE-CHAIR WAGONER said he understands the position Mr. Duffy is
in, but it seems the Governor has said in past speeches that the
resources of this state will be managed on biological
principles. Mr. Duffy's staff has supported predator control
based on biological principles for years. He asked how Mr. Duffy
and the Governor couldn't take the advice of ADF&G staff that
are being paid to make such recommendations. He stated:
I think we got politicized at the top again and I'm
not so sure - the legislature anyway - is willing to
sit here and watch one more study go by. With that
study and the timing you've given us, I believe that's
two seasons and two more litters of pups per pack and
not only are we going to be out of control, we're
going to be out of touch if that happens.
SENATOR DYSON said his sense is that the legislature will vote
to confirm Mr. Duffy and he appreciates the fact Mr. Duffy is
caught in the crossfire. He hopes Mr. Duffy can convey the sense
of this committee to the Governor: that biologists, the Board of
Game, local residents, and common sense strongly support getting
on with it. He said the delays are very frustrating and most
legislators do not believe they are justified. He commented that
most people who are offended by the predator control program
would not vote for the Governor anyway.
SENATOR SEEKINS said he was pleased with Mr. Duffy's opening
statement in which he said his management style would be based
on sound science and biology. He said when he reviewed the
survey [on predator control] sent out by ADF&G, it did not ask
anything about biological management. It asked how people felt
about predator control. In a letter of explanation, ADF&G
regional managers said it is important to know how people feel
about using short-term contraceptives to control the grizzly
bear population. He asked Mr. Duffy to explain how that human
dimension equates to biological management.
MR. DUFFY said he will take Senator Seekins' concern about the
survey to his staff but he is not moving off of his position
that he supports decision-making based on the best biological
science at the game board level and internally at ADF&G.
SENATOR SEEKINS referred to an ADF&G chart that shows the moose
population in Unit 13 has decreased from 27,000 to 8,000 from
1988 to 2001. He asked if that decrease represents a biological
emergency.
MR. DUFFY said it certainly represents a serious biological
concern. He would have to consult with the appropriate manager
at ADF&G before drawing that conclusion.
SENATOR SEEKINS said if that trend continues, the moose
population will be wiped out and that area is very close to one
of the largest metropolitan communities in the state. He said he
believes this is a sociological problem in that people are not
being given a reasonable opportunity to harvest.
VICE-CHAIR WAGONER took public testimony.
MR. CHRIS GARCIA said, from a commercial fishing perspective, he
believes the higher-level staff at ADF&G have given the
commercial fishing industry a very bad time over the last 20
years. For example, in the Kenai, the 2 percent aquaculture tax
equals $187,594,500, which was circulated in the local economy.
By 1990, that amount was knocked down to just under $10 million.
In his opinion, continuing on the current course will kill off
the whole peninsula. He recommended the legislature not confirm
Mr. Duffy as the commissioner of ADF&G.
MS. JANET CLUKAS, representing 16 set net fishing families in
the Ninilchik area, said those families used to make a viable
income from set netting, however over the last few years they
have been lucky to earn $2,000 per year. She said if Mr. Duffy
has been involved in that decline of income for set net
fishermen, she cannot endorse him for the position of
commissioner. She maintained the fishery was doing well under
the old management plan until the Knowles Administration took
over.
MR. LYNN LEVENGOOD, representing the Alaska Wildlife
Conservation Association, said the Association's only goal is a
return of the abundance of wildlife. The Association has been
shocked by the acting commissioner's actions regarding
interfacing with the Board of Game. When the Board asked him to
confirm that ADF&G biologists said that predation was causing
severe prey declines in Unit 19D, rather than providing the
board with the finding it asked for, he provided a document
saying ADF&G would fly over the area and tell the local people
there are predators out there. Mr. Levengood said that Mr. Duffy
is proud of implementing a public opinion survey about people's
feelings, while the charts provided by ADF&G show that an
emergency exists in Unit 13 and that families will go hungry. He
said that is not managing by biology. He urged members not to
confirm Mr. Duffy.
MR. KEN DUCKETT, Executive Director of the United Southeast
Alaska Gillnetters' Association, stated support for Mr. Duffy's
confirmation. He said he had the opportunity to work with Mr.
Duffy on an allocation task force set up by the Board of Fish.
TAPE 03-25, SIDE A
MR. DUCKETT said that allocation matters between different gear
groups are difficult. They worked together on that process for
about three years and, without Mr. Duffy's participation, he is
sure those endeavors would not have been successful. He said to
lay the problems of the fisheries on Mr. Duffy because he
happened to be involved in the last administration is not fair.
He asked members to give Mr. Duffy a chance as he will do a good
job as commissioner.
VICE-CHAIR WAGONER informed participants that although the
committee hearing was noticed as a confirmation hearing, Mr.
Duffy will stand for confirmation in front of the full body, not
this committee. The committee will forward his name on to the
full panel.
MR. JERRY McCUNE, Executive Director of United Fishermen of
Alaska (UFA), stated strong support for Mr. Duffy's
confirmation. UFA believes Mr. Duffy will bring ADF&G together
and get things working in favor of everyone in the state.
SENATOR SEEKINS asked Mr. Duffy how the upper level structure of
ADF&G will change and what new positions will be added.
MR. DUFFY said his deputy commissioner positions are not filled
as of yet. The current organization of the department has a
commissioner, two deputy commissioners, a special assistant for
the Pacific Salmon Treaty, a special assistant that is federally
funded and a legislative liaison. The structure he is looking at
implementing would have a commissioner, two deputy commissioners
for fisheries and a chief wildlife scientist. He said depending
on his confirmation, and the level of expertise of the selected
deputy commissioners, he may or may not need to bring in someone
with scientific expertise. The Governor would like to see the
level of scientific expertise ratcheted up, which Mr. Duffy
supports.
SENATOR SEEKINS asked if the directors report directly to the
commissioner.
MR. DUFFY said the division directors do not report to the
deputy commissioner. They discuss issues on a daily basis but
they report to the commissioner.
SENATOR SEEKINS asked if the directors are required to be
degreed scientists.
MR. DUFFY said yes; all current division directors have
biological credentials. Scientific expertise resides within the
divisions.
SENATOR LINCOLN mentioned that Senator Ted Stevens recently
challenged the Alaska House and Senate to resolve the
subsistence issue. She asked Mr. Duffy's position on a
constitutional amendment for a rural subsistence priority in
Alaska and what he intends to do in his role as commissioner to
get the issue resolved.
MR. DUFFY said he supports the Governor's perspective, that
being to adopt a constitutional amendment for a rural priority
and to make some modifications to ANILCA.
SENATOR LINCOLN referred to a letter the Alaska Village Council
Presidents (AVCP) wrote to the commissioner dated March 18 and
noted the commissioner responded that the [plan for the habitat
division] transition for permitting functions is moving forward.
She read from the commissioner's response, "I do not believe a
formal process to gather public input about the changes
undertaken is needed." She said she listened to Mr. Duffy say
ADF&G feels it is necessary to get more public input on the
predator control issue, which is the opposite of what he
emphasized to the AVCP. In his response he also said, "And I
believe our mandate to achieve greater profitability in Alaska's
resource extraction industry is clear." She asked Mr. Duffy to
explain what he meant by that last statement and how he will
combine that with his role as commissioner of ADF&G.
MR. DUFFY told Senator Lincoln that letter was drafted for the
Governor's signature but in the flurry of letters associated
with EO 107, he inadvertently signed that letter himself. He
said the letter talks about "my plan" but he is a commissioner
who works for the governor who has a plan. He apologized for his
error. He said regarding the public input comments, at the time
the letter was drafted, both the House and Senate were holding
hearings on EO 107. His conclusion, given the short timeframe of
an executive order, was that an appropriate public input process
relevant to EO 107 was being undertaken by the legislature. He
said the public weighed in significantly on that issue.
SENATOR LINCOLN commented that the letter was written on the
Commissioner's letterhead, not the Governor's.
VICE-CHAIR WAGONER said he distributed to members and Mr. Duffy
copies of a letter he received from a constituent. He then asked
Mr. Duffy what he tends to do to correct the type of mistakes
addressed in the letter and what he would do to assure those
mistakes do not occur in the future.
MR. DUFFY said he wants to reinforce within ADF&G the need to
provide the most biologically defensible and scientifically
credible information to both of the boards. He will hold people
accountable through the chain of command for major mistakes that
are made. He explained that within the Board of Fisheries
process, proposals are combined by subject matter; committees of
1, 2 or 3 board members are then formed. Committees hold
meetings with members of the public to discuss potential
solutions to the issues. Senator Wagoner's constituent argued
that inadequate time was provided to the public to respond to a
committee report and that some of the information provided to
the committee was incorrect and may have had implications.
In response to the constituent's complaint, MR. DUFFY said the
Board sets deadlines for public review of committee reports and
requires meetings to be held within the original dates. The
Board attempts to make completed committee reports available to
the public as soon as possible for review prior to deliberation
before the full Board. There is a time crunch but the committee
tries to get the report written as soon as possible. Regarding
the criticism that 12 ADF&G employees were involved with a
committee, he explained that only board members are members of
the committee. ADF&G staff attends only to provide technical
advice, and often only two or three staff attend meetings. The
fact that 12 employees listened to the issue might have meant
that particular issue was of interest to them.
Regarding the incorrect information in the committee report, MR.
DUFFY said that was an unfortunate mistake and, due to the tight
time constraint, ADF&G actually provided percentages for male
salmon instead of females. However, board members were made
aware of the incorrect data prior to deliberations.
VICE-CHAIR WAGONER said his point was the time crunch needs to
be examined because the state cannot afford to make mistakes on
a critical fishery.
MR. DUFFY concurred and said he will do everything within his
power to make sure ADF&G is providing the best information
available at the time.
SENATOR ELTON asked Mr. Duffy whether the Governor's Office was
informed of the particular employees who may not be retained in
the transfer of the habitat division or whether the Governor's
Office provided ADF&G with names prior to notification of non-
retention.
MR. DUFFY said the short answer is no [names were discussed].
SENATOR ELTON asked Mr. Duffy whether he will delegate his seat
on the North Pacific Fisheries Management Council or whether he
will serve.
MR. DUFFY said he will serve. He believes Alaska needs to
emphasize the need to restructure and revitalize its salmon
industry. If he can maintain his council seat, a deputy
commissioner will be freed up to put greater emphasis on the
commercial salmon industry.
SENATOR ELTON said that from Mr. Duffy's description of his
restructuring of the Commissioner's Office, he thinks the first
criterion for the second in charge should be someone with strong
management skills since Mr. Duffy plans to keep his seat on
NPFMC.
VICE-CHAIR WAGONER said candidates with both strong scientific
and management skills are available.
SENATOR ELTON said his point was that strong scientific skills
should not be the threshold issue.
SENATOR SEEKINS thought most commissioners filled the seat on
NPFMC in the past.
MR. DUFFY said that changed, depending on the commissioner. He
said the previous deputy commissioner sat on NPFMC. In response
to Senator Elton's comment, he said when he talked about a
revised structure in the Commissioner's Office, he talked about
two deputy commissioners - one to focus on fisheries issues, the
other to focus on wildlife issues. Depending on the nature of
the skill set of the people hired, those people may or may not
have very strong scientific credentials. He may instead choose
to hire someone with strong administrative skills and a long
term working relationship with the legislature. If that is the
case, he may bring in an additional person with scientific
expertise.
SENATOR ELTON said that idea scares him because given the budget
cut scenario of 90 and 95 percent of general fund dollars, the
only component with general fund dollars will be the Division of
Commercial Fish. Therefore, Mr. Duffy will be shifting general
fund dollars from that division to the commissioner's office.
VICE-CHAIR WAGONER asked Mr. Duffy if he believes the state has
the processing capacity to handle its current run of salmon or
whether it will need to allow the Russians to come into Alaska
waters to purchase salmon.
MR. DUFFY said based on ADF&G's capacity survey of the domestic
processors, Alaska has adequate domestic processing capacity to
handle the anticipated salmon return in 2003.
SENATOR LINCOLN asked Mr. Duffy to describe his background in
wildlife issues and how much time he expects to spend at NPFMC
meetings each year.
MR. DUFFY said his background in wildlife issues is not his
strong suit, which is why he believes it is incumbent upon him
to rely on the expertise in the division and to hire someone
with expertise. In terms of time spent on the Council, he said
the Council meets four times per year; each meeting lasts one
week.
VICE-CHAIR WAGONER asked Mr. Duffy if he supports SB 70.
MR. DUFFY said he believes the attorney general's office has
participated in the hearings on SB 70. They see it as a
clarification of the commissioner's authority. If that is what
it does, he supports it with the caveat that he would be leery
of it if it puts him in a situation where he would constantly be
second guessing Board of Fish allocation decisions relative to
salmon. He said he would like the opportunity to consult with
the attorney general's office before giving a more definitive
answer.
VICE-CHAIR WAGONER asked Mr. Duffy to get back to him with an
answer.
SENATOR SEEKINS said he understands that Mr. Duffy was not
personally involved in some of the decisions made in the
management or mismanagement of game by ADF&G over the last
several years. However, many of his constituents feel strongly
that ADF&G is the department of "watch them and count them,"
which is not management. They feel the upper levels of the
department support a philosophy of watching and keeping records.
He said these people, both urban and rural, want to put food on
the table for their families. He said that humans harvest less
than 3 percent of the annual harvestable surplus of ungulates;
the rest go to predators. He said the precipitous decline in the
reproductive base is the result of predation, not of human
hunting. To see that this Administration advocates further study
rather than biological management is shocking. He said his
constituents want to know what Mr. Duffy plans to do within
ADF&G's structure to fix that.
MR. DUFFY said during the first three months of the new
administration, there has been a move in a positive direction
relative to predator control programs. It may not be what
everyone wanted, but it is moving in a direction that is
responsive to the public. As commissioner, he wants to have a
strong working relationship with the game board.
VICE-CHAIR WAGONER asked Mr. Duffy what is the single most
important factor in managing the state's fisheries resources.
MR. DUFFY answered scientific and biological credibility of the
information provided to the Board of Fisheries by which it makes
allocation decisions.
There being no further questions, SENATOR DYSON moved to forward
the name of Mr. Duffy to the full body for consideration for
confirmation, with the understanding that a vote in favor does
not indicate support for or objection to Mr. Duffy's
confirmation.
With no objection, VICE-CHAIR WAGONER announced the motion
carried. He then adjourned the meeting at 5:45 p.m.
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